The question before the court is a tax question that relates to immigration law: Can non-resident homeowners use the homestead property tax exemptions if their children are U.S. citizens?
Under the Florida Constitution, permanent resident dependents are eligible or an exemption for their homes. In 2006, that exemption was $25,000. Today, the exemption includes an additional $25,000 for non-school taxes.
In the case before the Supreme Court, a couple from Honduras is requesting a 2006 exemption on their million-dollar home because their children, who have only ever lived in that home, are U.S. citizens.
]]> The Miami-Dade Property Appraiser's Office has argued that the children are not residents of Florida, but residents of Honduras because that is their parent's permanent residence. The Office argued that the children could leave Florida if their parents decided to return to Honduras. The Florida Association of Property Appraisers supports the Appraiser's Office, while the Florida Department of Revenue has shown support for the homeowners.The couple appealed the Appraiser's Office denial to the Value Adjustment Board, which granted them the exemption. Both the trial court and the Third District Court of Appeals upheld the board's decision.
While it is not certain how the Justices will rule in this case, they have shown support for the homeowners, claiming that it is "bizarre" to use the possibility of the children leaving Florida to establish ineligibility, since permanent residents can leave Florida at anytime.
As this case shows, immigrants face legal issues that extend beyond applying for visas and defending against deportation. Whatever legal issue you face, an experienced attorney can help protect your rights.
Source: Fox News Latino, "Florida Justices Hear Case for Denying Homestead Exemption for Immigrants," May 8, 2012.
]]>A U.S. Supreme Court decision in 2010 held that attorneys who fail to warn of the deportation risks of criminal convictions do not provide effective counsel as required under the U.S. Constitution.
Now, the Florida Supreme Court must determine whether:
U.S. Supreme Court deciding whether decision is retroactive
Meanwhile, the U.S. Supreme Court will also address whether their 2010 decision is retroactive. On April 20, 2012, the Justices agreed to hear an Illinois case involving that issue. The Florida Supreme Court may decide to wait to make a decision on the issue until the U.S. Supreme Court has done so.
If the Courts determine that the decision is retroactive, a large number of past criminal immigration law cases could be overturned.
Source: News4Jax.com, "Florida Supreme Court hears 3 immigration cases," May 8, 2012.
]]>Rubio pointed to Arizona's challenges with trafficked drugs and guns as the reasons for why the law could work for Arizona but not for other states. According to Rubio, as well as Florida immigration attorneys and other advocates, the power to create and enforce immigration policy rests with the federal government. It is a federal power under the U.S. Constitution.
]]> This is the U.S. Department of Justice's (DOJ) argument in U.S. v. Arizona. According to the DOJ, Arizona has overstepped its bounds by creating a state immigration law. Arizona replied that the law falls within the federal law and is, therefore, constitutional.While some states are poised to enact a law similar to Arizona's should the U.S. Supreme Court hold it constitutional, Florida does not count itself among them. There has been no recent push to pass an anti-illegal immigration bill, and last year's bill didn't pass the House. Governor Rick Scott went into office pledging to crack down on illegal immigration, but he has not acted on that pledge.
This is an election year where politicians will undoubtedly create immigration promises to win over the Latino vote. It should be interesting to see what happens after the U.S. Supreme Court makes its decision on the Arizona case in June. Immigration has become a limelight issue again and the next few years will hold much debate as well as changes to federal and state immigration laws.
Source: Fox News Latino, "Arizona Immigration Law Is No National Model Says Marco Rubio," Elizabeth Llorente, Apr. 20, 2012.
]]>The young lawyer was born in Mexico and entered the country at the age of nine. His legal residency status expired with his tourist visa. His case has drawn comparisons to Daniela Palaez, an undocumented Columbian immigrant who faced deportation despite graduating as valedictorian of her high school class. Like Palaez, the man in this case was a high school valedictorian and an Eagle Scout, later graduating at the top of his class at Florida State Law School and passing the state bar exam.
]]> The Florida Board of Bar Examiners asked the Supreme Court to decide his case, describing it as "high profile." The Board usually requires examinees to submit proof of immigration status. However, it granted a waiver in this case because the individual disclosed his status and pointed out that the Board's rules do not require documentation for admission to the bar. Many lawyers think he has a strong case.However, federal law would prohibit this attorney from legally working in the United States. That has not stopped his supporters, including Florida legislators and his current lawyer and former law professor, from advocating on his behalf. The DREAM act, a federal bill, would provide a path to citizenship for undocumented children of parents who immigrated to the United States.
If the Supreme Court bars his admission, the state would potentially lose the social contributions of undocumented but talented professionals and lose its investment in their public education. For his part, the young man has been candid about his undocumented status and looks forward to becoming an admitted attorney.
Source: FoxNewsLatino, "FL Court to Decide If Undocumented Can Become Lawyers," Apr. 17, 2012.
]]>The immigration law is being challenged on multiple grounds, including civil rights concerns and whether the state law conflicts with the federal government's power to enforce immigration laws. This particular case involves only the second factor ("this is not a case about ethnic profiling," Chief Justice John Roberts said).
]]> Arizona's 2010 immigration law, SB 1070, requires police to question the status of those in custody if they have a "reasonable suspicion" that the person is not in the U.S. legally.The question at issue: Does Arizona's immigration law exceed its authority by requiring record checks and allowing the warrantless arrest of suspected illegal immigrants? If so, then the law is unconstitutional.
The Court questioned Solicitor General Donald Verrilli, Jr., stating that Arizona's law only allows the state to notify federal authorities when someone is illegally in the state. Yet, when attorney Paul Clement for Arizona said that Arizona's law merely mirrors federal immigration law, Chief Justice Roberts countered that the law imposes "significantly greater sanctions."
Even if the June decision of this case is in favor of the Arizona law, there are other lawsuits against the law that have been filed by immigrant rights organizations. Those cases are based on the discriminatory aspects of the law. They are currently on hold and may move forward after a decision has been made in the current case. We expect a decision in June.
Source: Associated Press, "Supreme Court Hints OK on Ariz. Immigration Law," Mark Sherman, Apr. 25, 2012.
]]>The H-1B visa program allows U.S. employers to hire foreign workers for a specified period of time, typically a year and up to three years initially. Employment can be full or part time, and employees can work for more than one U.S. company during the same period of time. Positions that specifically qualify for the H-1B visa under the program include IT, legal, banking, finance, and engineering positions.
]]> To be eligible, workers must have one of the following:Workers receive three points for each year of college and one point for each year of work, and must accumulate 12 points to qualify for the program.
One unique aspect of this type of visa is that it is a "dual intent" visa. Dual intent visas allow foreign workers to apply for a green card while working in the US under the program. There is no detriment to the worker or employer for making the application for a green card. Being denied a green card does not mean the worker must leave the country prior to their approved timeframe. The H-1B visa is managed by the United States Citizen and Immigration Services.
There are only a limited number of individuals who can be approved for the H-1B visa. In 2012, the limit or "cap" is 65,000. Workers with advanced degrees may be exempt from the cap if the worker received their degree in the U.S. However, once the USCIS has received 20,000 workers with advanced degrees, all new applications will be deducted against the 65,000 limit. There is also a set aside allowance of 6,800 for students who are earning advanced degrees in the U.S.
The application process opened on April 2, 2012. Over 25,000 applications were received within the first week, a dramatic increase from last year. Once the cap is reached, the USCIS will no longer accept applications for 2012. Employers looking to utilize the program should apply early to have a greater chance of being accepted.
Source: Wall Street Journal, "Skilled-Worker Visas See a Surge in Demand," Miriam Jordan, Apr. 9, 2012.
]]>EB-3 Visas
The EB-3 visa, or employment-based third preference visa, is available to three categories of workers: skilled workers, professionals and other workers.
Skilled workers are workers who have at least two years of training or experience in a job. Professional workers have a U.S. baccalaureate degree or its equivalent. Other workers are those who perform unskilled labor that does not require training or experience. (There is a very long backlog for workers that fall into the "other workers" category.)
]]> EB-3 visas require approved labor certification. An employer must petition for a foreign worker to immigrate to the U.S. through Form I-140.EB-3 visas account for 28.6 percent of all employment-based visas.
EB-4 Visas
The employment-based fourth preference visa, the EB-4 visa is available to certain classes of special immigrants, including:
The process for immigrating under an EB-4 visa is slightly different from that of the other EB visas. An employer must file Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. In some cases, the employee may submit a self-petition.
EB-4 visas account for 7.1 percent of all employment-based immigrant visas.
EB-5 Visas
The EB-5 immigrant investor visa is also a unique visa that was created to stimulate the U.S. economy. It is available to individuals who invest in a new commercial enterprise that creates or preserves at least 10 full-time jobs in the U.S. for at least two years. Generally, an immigrant investor must invest between $500,000 and $1 million into the U.S.
Individuals interested in immigrating under an EB-5 visa must file an Immigrant Petition by Alien Entrepreneur with the USCIS.
EB-5 visas account for 7.1 percent of all employment-based visas.
Source: U.S. Department of State, "Employment-Based Immigrant Visas
]]>There are five EB visa / employment-based permanent residency categories:
In this blog post, we will discuss the EB-1 and EB-2 visas.
]]> EB-1 VisaEB-2 Visas
The EB-2 visa, also known as the Employment Second Preference visa, has two subcategories:
In order to immigrate through an EB-2 visa, the prospective immigrant must have a job offer and a labor certification that has been approved by the Department of Labor unless the applicant is eligible for a National Interest Waiver (a waiver stating that it is in the country's best interests to waive labor certification). The immigrant's employer must also file Form I-140.
Next week, we will discuss the final three EB visa categories.
Source: U.S. Department of State, "Employment-Based Immigrant Visas."
]]>The options for employment-based permanent residency include:
Source: U.S. Citizenship and Immigration Services, "Green Card Through a Job," 2009.
]]>In 2009, lawyers for the Justice Department told the Supreme Court that the government helps (they used the word "facilitates") deported immigrants who win their deportation appeals return to the United States. The Supreme Court used that statement in its decision to allow the Justice Department to continue deporting immigrants who have pending immigration appeals. According to Chief Justice John Roberts, the deportations were "burdens," but not "categorically irreparable."
Now, immigrant-rights groups are fighting back, saying that the government does not help immigrants return to the U.S. after they win their immigration appeals.
]]> There are confidential emails between the attorneys and the government that supposedly allude to the policy, but the government has yet to prove that a written policy existed. Furthermore, U.S. Immigration and Customs Enforcement (ICE) issued a directive in late February that discusses ICE's policy on helping immigrants return when their appeals are successful. Unfortunately, that directive did not provide many details about how to "facilitate" their reentry.According to the judge who is hearing the immigration advocates' case, U.S. District Court Judge Jed Rakoff (New York), "there is substantial evidence that the judicial process may have been impugned if the Supreme Court relied upon what may well have been inaccurate or distorted factual representation."
If the immigrant-rights groups are able to prove that the Justice Department's lawyers used inaccurate information as evidence in front of the Supreme Court, the Supreme Court's decision could be challenged. Whether that would result in a positive change in immigration policy is yet to be determined.
Source: The Wall Street Journal, "Immigration Case Challenges Justice Department's Credibility," Jess Bravin, Mar. 13, 2012.
]]>Below are the principal requirements for H-1B visas. One of the most significant requirements is that the visa applicant should have a valid license to practice the healthcare occupation in the particular state he or she would be employed.
]]> If the prospective nonimmigrant is unable to obtain a license because he or she does not have a work authorization document or Social Security card, then the applicant must show that he or she has attempted to obtain a license and has all of the qualifications required for the license except for a valid work authorization document or SSN card.Requirements for H-1B Specialty Occupation Visa
Under U.S. immigration law, employers may sponsor immigrants for the H-1B visa if the job is so specialized or complex that it can only be performed by someone with a bachelor's degree or higher, and the job description requires at least a bachelor's degree.
In order to qualify for the job, the immigrant healthcare worker must:
The process for obtaining an H-1B visa has multiple stages. First, an employer must file a Labor Condition Application (LCA) as well as a Form I-129, Petition for a Nonimmigrant Worker. Once the petition has been approved, the foreign worker must apply for the H-1B visa. The U.S. only admits 65,000 nonimmigrants on H-1B visas each year, though the first 20,000 visa petitions filed for individuals with a master's degree or higher do not count toward that cap.
If approved, an H-1B visa holder is admitted to the U.S. for up to three years, which can be extended to six years. Family members of the nonimmigrant may seek admission through the H-4 nonimmigrant classification.
Source: USCIS, "H-1B Specialty Occupations," Sept. 6, 2011.
]]>If eligible for adjustment of status, a nonimmigrant can apply for permanent residence without returning to his or her home country.
Who Is Eligible?
In order to have your immigration status "adjusted," you must:
Furthermore, an immigrant visa must be available when you file your application for adjustment of status.
]]> Steps to TakeAn immigration lawyer can help ensure that you meet the requirements for adjustment of status and that you take all of the necessary steps, including:
Source: U.S. Citizenship and Immigration Services, "Adjustment of Status," 2011.
]]>Prosecutorial discretion
A June 17 memorandum by Immigration and Customs Enforcement (ICE) director John Morton guided ICE attorneys to use their prosecutorial discretion when prosecuting deportation and detention cases, stating,
ICE must prioritize the use of its enforcement personnel, detention space,
and removal assets to ensure that the aliens it removes represent, as
much as reasonably possible, the agency's enforcement priorities, namely
the promotion of national security, public safety, and the integrity of the
immigration system.
Hardship waivers
In early 2012, the Obama administration announced an immigration rule change that would allow certain individuals applying for hardship waivers to stay in the U.S. while their applications are processed. Under the original rule, undocumented immigrants had to leave the country before requesting the waiver.
When an immigrant applies for a hardship waiver, they are asking the U.S. government to waive a three- to ten-year ban from returning to the country that the U.S. puts on illegal immigrants facing deportation. Usually, an undocumented immigrant must show that the ban would cause extreme hardship to a U.S. citizen family member.
The new rule would allow children and spouses of U.S. citizens to stay in the U.S. while the applications are processed, which can take up to six months. The rule would also reduce the processing time for most applications - to weeks or even days.
Shifts in immigration policy are not uncommon. For now, none of these policies are laws and we have yet to see results. If you have questions about these policies and how they may affect you, speak with an experienced immigration attorney.
Source: U.S. Immigration and Customs Enforcement, Memorandum From John Morton, Director, June 17, 2011.
]]>The man was arrested after he accidentally shot his two-year-old cousin. According to the Department of Justice, he admitted to purchasing the firearm a year ago.
Under federal law, illegal immigrants may not possess firearms or ammunition. In fact, some immigrants who are in the U.S. legally can also face serious criminal immigration penalties if they possess firearms. This includes any immigrant lawfully admitted under a non-immigrant visa. Immigrants who are permanent residents may possess both guns and ammunition.
]]> "Possession of a firearm or ammunition by a prohibited person" carries up to ten years in prison. It can also have serious immigration consequences.There are multiple ways that possession of a firearm can be considered an "aggravated felony" under U.S. immigration laws:
Conviction of an aggravated felony can lead to mandatory detention and deportation. It will also bar an immigrant from returning to the United States. If the immigrant illegally reenters the U.S., he or she could face up to twenty years in prison.
With consequences this severe, it is vital to speak with an experienced immigration lawyer if you have been charged with unlawful possession of a firearm or any other immigration crime.
Source: Wink News, "Illegal immigrant pleads guilty in firearm possession," Feb. 13, 2012.
]]>A 20-year-old college student testified before the Committee, saying that, "As a U.S.-born American citizen I can vote, I pay taxes, I attended school in Florida." Residency, however, is determined according to the status of a student's parents and not the student's status. Thus, the student must pay out-of-state tuition, which is nearly three times higher than Florida's in-state tuition.
]]> Adults who wish to qualify for Florida's in-state tuition must live in Florida as an independent adult for at least a year. The witness had done just that. Yet, because her parents are not citizens, they do not have legal residency and she is not eligible for in-state tuition.SB 1018 would have required U.S. born children of illegal immigrants to attend a Florida high school for at least two years and graduate from that high school. The bill would also have applied to students whose parents were incarcerated or missing.
"I really didn't want this to turn into an immigration issue," the sponsor of the bill, Sen. Rene Garcia, said. Yet, in this tense political environment, anything that benefits illegal immigrants and their children is likely to be portrayed as an immigration issue.
Source: Miami Herald, "Fla. Senate panel kills immigration tuition bill," Bill Kaczor, Associated Press.
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